Canton lawyer

Mediation a wise alternative

Dana Thompson

The Cherokee Board of Commissioners has proclaimed this week “Mediation Week in Cherokee County.” Along with the American Bar Association, our commissioners are raising awareness of the process of mediation (not to be confused with meditation) as an effective and efficient way of resolving disputes, expediting justice, relieving court congestion and preventing costly delays in the justice system.

Most lawsuits settle before going to court. Often, though, the parties have made an enormous financial and emotional investment in the dispute before it is resolved. Trials are unavoidable in some cases, but fortunately, other means of settling conflicts have become more common.

In 1990, the Supreme Court of Georgia established a Commission on Alternative Dispute Resolution to implement a statewide alternative dispute resolution system. In 1993, the Office of Dispute Resolution for the 9th Judicial Administrative District (a 14-county area in north Georgia, of which Cherokee is a part) was established and our judges, who supported the establishment of the office, have since ordered or encouraged parties to participate in mediation prior to a final hearing in their cases.

Ten years after the establishment of the office, approximately 1,930 cases were referred to mediation. Last year, the District ADR office received over 6,500 referrals.

This column will address some frequently asked questions about mediation.

Q. What is mediation?

A. Mediation is a process in which disputing parties select a neutral third party to facilitate a mutually beneficial, negotiated settlement. Unlike arbitration, a mediator does not render a judgement which is binding on the parties. An informal and non-adversarial process, its objective is to help the disputing parties reach a mutually acceptable agreement.

Q. What is the role of the mediator?

A. Most mediators provide an environment which encourages open, constructive communication between the parties. Mediators are trained to assist the participants in identifying issues and interests, explore possible bases and avenues for settlement, and help the parties reach a voluntary agreement that is acceptable to both parties.

Q. Why mediate a case?

A. Mediation has several advantages, particularly when utilized early in a conflict.

Flexibility. No one is more familiar with the specific circumstances of a case than the parties involved, which means that the parties are in the best position to craft an agreement that best suits their needs. The parties are not limited to standard damages or remedies, and the mediator will encourage consideration of a wide range of options. Mediation produces innovative solutions.

Cost effective. If a matter settles, further expenses of litigation can be avoided. If the matter does not settle, the financial investment in mediation is usually minimal compared to the cost of extended litigation, and the parties generally have a better understanding of their cases and the position of the other side.

Efficient. Parties are often frustrated by the time it takes to resolve a case. Mediation puts the process in the control of the parties, who choose the mediator, set the meetings and prescribe the terms of the settlement.

Confidential. Mediations are conducted in private, removing the dispute from the public eye. Prior to mediation, participants must sign a confidentiality agreement which provides that all communications made by the parties during the process will be kept confidential. Also, if desired, the settlement agreement itself may, under certain circumstances, remain confidential.

Supports Relationships. Disputes often involve family members, parties to a business relationship, or parties to whom a continuing relationship is important. Divorcing parents, with the strong encouragement of the courts, are frequent participants in mediation. Mediation reduces hostility and is more likely to preserve, or at least prevent the destruction of relationships between the parties and allows communication in the future.

Q. How successful is mediation?

A. In general, the process has a very good track record.

Q. Is mediation used only in lawsuits?

A. No. Mediation is increasingly being used as a means of addressing conflicts before they rise to the level of a lawsuit. Many commercial contracts include mandatory mediation in the event of a dispute. Businesses have established mediation programs to deal with co-workers disputes, unfair employment practices, harassment, discrimination, and other employment related issues. Government agencies are being required to implement mediation or other ADR programs. Schools have developed programs which teach and enable children to mediate conflicts between students. Individuals are calling upon mediators to help them resolve conflicts. Recognition of the heavy cost of litigation has made mediation a popular alternative.

More on mediation can be found at www.adr9.com or godr.org.

Dana M. Thompson is an attorney with the Canton firm Thompson, Meier & King. She is a certified mediator with the Georgia Commission on Dispute Resolution and the Ninth Judicial District Office of Dispute Resolution. One of the first mediators in Georgia, Ms. Thompson has mediated cases since 1993 and also serves as a Special Assistant Attorney General.

Read the contract, read the contract, read the contract!

During a particularly tough case involving a construction dispute, a sage old attorney told me the favorite saying of an even more sage like and older attorney was “read the contract, read the contract, READ THE CONTRACT.”  While this particular phrase could likely be traced down the line of attorneys through rudimentary contracts drawn on a cave wall, it holds no less true today.  The contract forms the basis for how business is done.  While the law can impose certain behavior on people, it can’t and shouldn’t dictate everything that occurs between people or businesses.  Contracts fill that void and lay out the expectations and duties for each party to the agreement.  While usually beneficial to both parties, contracts can sometimes trap the unwary.

In a recent decision (Progressive Electrical Services, Inc. v. Task Force Construction, Inc., 327 Ga. App. 608), a Georgia court found the president of an electrical contracting company personally liable for the money his company owed to a supplier.  The electrical contractor signed a contract containing a “Signature Provision” above where the president was to sign.  This provision included language stating that the signor of the contract would bind himself, individually, as well as his company to the terms of the contract.  The signature line itself simply had his name and his title within the company.  There was no separate area in the contract where he signed indicating that he was accepting personal liability for the provisions of the contract.

Because otherwise there would be no need for this cautionary tale, things went sour on the project.  The electrical contractor was not able to pay its supplier.  The supplier sued to recover money owed to it, which the general contractor eventually paid.  The general contractor then sued the electrical contractor and its president in an individual capacity to recover the money it paid to the supplier.  The president argued that he signed the contract on behalf of the company and did not sign individually.  The court disagreed.  The court found the language in the paragraph above his signature enough to make the president individually liable for the debt if the company could not pay.  By all appearances, the company could not afford to pay the balance owed leaving the president solely responsible.

As with most things, there are two sides to this outcome.  First is that of the president of the electrical contracting company.  Typically when an individual signs a contract as the agent of the company and do not take on personal responsibility.  The reason for the business’s existence is to limit its investors and employees from the risk needed to operate: taking on debt, performing work, hiring employees, and generally interacting with the world.  If a business fails, the investors would only lose their investment and not their home.  With the signature on this contract, however, the president circumvented all of those protections and made himself personally liable.

The other side of this outcome concerns the general contractor and its good planning that the provision was included in this agreement.  The foresight of its management and counsel increased the likelihood that they would recover against the electrical contractor for any breach of its contract.

This case illustrates two practice points.  It re-enforces the need to actually read the contract you are signing.  An educated review would have revealed the troubling language to the electrical contractor and could have likely been a negotiation point.  The flip-side of that point is that a contract can be a great tool to protect your interests.  By including a simple provision in a contract with a contractor who might be on an unsteady financial foundation, the general contractor minimized its liability.

If you have a question regarding any construction contract presented to you, or need one prepared, feel free to contact Will Tate, attorney with Thompson, Meier and King, P.C., at wrt@dmtlawfirm.com or (770) 479-1844.

King, Meier named among legal world’s ‘Elite’

John-Meier trish-kingPassion for practicing law is just one quality that boosted two Canton attorneys to the top. John Meier and Patricia King, who are partners in the Canton law firm of Thompson, Meier and King PC, recently were selected for inclusion in Legal Elite by Georgia Trend Magazine.

The attorneys were named as elite members of the legal field after a peer-review process where thousands of attorneys, who are members of the state bar, voted for the top attorneys in 10 different practices.

Meier was named Legal Elite in estate planning, and King was named Legal Elite in family law.

“I have to admit I was pleased to learn that my peers thought highly of me,” Meier said. “This also helped encourage me to continue pursuing my passion and broaden the services we provide so that we can be of greater assistance.”

King shared a similar sentiment.

“It was truly an honor,” she said of being named in Legal Elite. “However, I have the privilege of working with so many wonderful attorneys and staff that any accolades I may receive is really the result of a concerted effort.”

King, who has practiced family law since 1989, said going to law school was not a venture she had thought to pursue until graduating from college.

“I received my (bachelor of science) in psychology and criminal justice and was focusing my career on working with troubled teens,” she said.

It was an internship with a Connecticut juvenile probation department that opened King’s eyes to attending law school.

“I realized what a hard road many young people were faced with once they entered the system, whether it was because they committed a crime or because their parents could not care for them,” she said. “That’s when I decided to go to law school. After I graduated from law school, I entered private practice for a number of years but was offered the opportunity to become a child welfare attorney for the state of Florida.”

King’s career took off after that and with 15 years of experience in the courtroom, her passion for family law remains just as strong as it was when she started on her career path.

“Generally, family law deals with a number of family related matters, such as child welfare, adoption, delinquency, termination of parental rights as well as divorce, annulments, paternity and legitimization and issues tied to those matters,” she said.

“I knew very little about this practice until I became a child welfare attorney in Florida, and then it took off from there. I knew this was what I was supposed to be doing,” King said.

Meier said he enjoys practicing estate planning, which, he added, encompasses many different parts of the law.

“Certainly, it involves planning for the efficient transfer of assets in accordance with one’s wishes after death.  However, it also involves assisting clients with their long-term goals before death,” he said. “This can involve issues related to long-term health care, business succession, incompetence and planning for the care of a spouse or other loved ones, just to mention a few.”

Meier started his career as an attorney in 1985 and said he was inspired to pursue law by his friend’s father.

“However, I also grew up working on family farms. I went to college and furthered my love for farming and the family farm,” he said. “I was fortunate to have been hired by the University of Georgia’s Agricultural Economics Department (I ,think it is now the College of Environmental Sciences) after graduating. I worked for four years with UGA as an economic research associate. I spent those years working with hundreds of family farmers and agribusinesses across the state.”

When Meier was an economic research associate, he said it was a time of ultra-high inflation and oil embargos.

“I saw way too many families displaced from the only life they knew and lose assets that had been in their families for generations,” he said. “During this time my father died, and I was uncertain about the future of our farms. I decided that pursuing a career as an attorney assisting families and businesses build, retain and pass along assets was a way I could help others. Things have kind of morphed from there.”

Since embarking on a career that helps others plan for the future, Meier said one of his greatest accomplishments is “providing comfort to someone in a time of turmoil or anxiety.”

“This may not be a big accomplishment in terms of its effect on others but, for that person or family, it was one of the most important things in their life,” he said. “I believe my biggest blessing is my family.”

King said her greatest accomplishment is not tangible.

“I love what I do and the people I work with,” she said. “I have asked myself more than once, ‘how did I get so blessed, especially when it comes to the people in my office?’”

Similar to any career, there is always room for improvement.

pic-4-1aMeier said he encourages growth through professionalism in the courtroom.

“Fiduciary dispute matters are almost always complicated by very strong emotions,” he said. “In my opinion, attorneys certainly need to be zealous advocates for their clients, but they also should act in ways to try and maintain the focus on the client’s goals while endeavoring to limit the often adverse impact of decisions made based on emotion rather than reason or prudence.”

King agreed, adding that because family law matters can be highly emotional, she strives to treat everyone involved with respect.

“That’s not to say that I have achieved perfection in this area, although I can aim to do so one day,” she added.

 

The above news story was written by Jessica Lindley and published in the Cherokee Ledger News. The story can be found online here.